Scottish Court of Session Decisions

This was a petition by (1) The Provost, Magistrates, and Councillors of the Royal Burgh of Rothesay, acting as such, and as Commissioners for the said burgh, and as local authority under the Roads and Bridges (Scotland) Acts, the Public Health

Page: 451↓

(Scotland) Acts, and the Electric Lighting Acts, and (2) the Rothesay Harbour Trustees, for the appointment of an interim town clerk to act in room of James Carse, solicitor, Rothesay, who had been dismissed from the office of town clerk, and from certain other offices to which he had been appointed.

The petitioners stated as follows:—“On 26th September 1899, James Carse, solicitor, Rothesay, was appointed town clerk of the royal burgh of Rothesay, and was also appointed to the various offices and appointments connected with the duties which the Town Council perform as Commissioners and Local Authority foresaid.

In a very short time after Mr Carse's appointment it was found that the duties of the office of town clerk of said burgh, and of the said offices, appointments, and employments, were performed by him in an exceedingly unsatisfactory manner. He neglected entirely to perform the chief duties belonging to the various offices held by him, and in the conduct of such business as he did undertake he was so negligent and careless that no reliance could be placed upon him. Nor could any reliance be placed upon his word, as his statements were frequently found to be untrue. He became excessively addicted to alcohol, and he frequently appeared at meetings of Council, in the Police and Dean of Guild Courts, and at Public Inquiries in a condition which showed that he was suffering from the effects of this indulgence.

Towards the end of the year 1901 the petitioners became convinced that in the interests of the burgh Mr Carse could not be permitted to continue to conduct himself as he had been doing. Meetings of Council were held to consider what course should be followed, and Mr Carse having refused, when remonstrated with, to amend, it was finally resolved to take the opinion of counsel. A memorial was accordingly prepared and submitted to counsel, and counsel were of opinion that, upon the facts disclosed in the memorial, the petitioners were entitled and called upon, and that it was their duty, to dismiss Mr Carse from the office of town clerk and from the said offices, appointments and employments.

Accordingly, on 21st January 1902, the petitioners, the Provost, Magistrates and Councillors of the said burgh, passed a resolution dismissing Mr Carse from the office of town clerk of the said burgh, and on said date the petitioners, the Provost, Magistrates and Councillors of the said burgh, acting as such and as Commissioners and local authority fore-said, and the Rothesay Harbour Trustees, passed a resolution dismissing him from the offices, appointments and employments held by him.

The said resolutions were communicated to Mr Carse, but he has declined to recognise the right of the petitioners to dismiss him from the said office of town clerk and from the said offices, appointments, and employments. An action of declarator, interdict, and delivery has accordingly been raised against him at the instance of the petitioners, in which it is sought to have it found and declared inter alia that he has been duly and legally dismissed from the office of town clerk and from the said offices, appointments, and employments as from 21st January 1902. The summons in said action was signetted on 20th February 1902, and a copy is produced herewith and referred to.

In the meantime, and pending the decision of the said action, great difficulty and inconvenience will be experienced in the conduct of the affairs of the burgh through the want of a properly appointed clerk. If the petitioners succeed in said action, and it is found and declared by your Lordships that Mr Carse has been duly and legally dismissed from the office of town clerk, and from the said offices, appointments, and employments, as from 21st January 1902, all acts done by him in connection with the office of town clerk, or with the said offices, appointments, and employments subsequent to said date will be null and void; and further, the petitioners having dismissed him from the various offices held by him will be unable to accept his advice in reference to the affairs of the burgh, and particularly in reference to the litigation which will follow upon the said summons of declarator, interdict, and delivery.

Already meetings have been held at which the relations between the town clerk and the petitioners have seriously interfered with the business of the burgh. Mr Carse has been sequestrated under the Bankruptcy Acts, and William Alexander Stewart, writer, Rothesay, has been appointed trustee on his sequestrated estates. Disputes and litigations have arisen as to salary and other matters between the trustee and various members of the staff of the town clerk's office. The depute town clerk and the whole staff of the office are in the employment of Mr Carse. The depute has resigned, and the circumstances threaten to paralyse the whole work of the office. Not only in consequence of the present litigation, but in consequence of the town clerk's bankruptcy, his interests have become hostile to those of the corporation. In particular, it has been found necessary to retain part of his salary in consequence of a claim at the instance of the corporation for licences and fees collected by the town clerk, and disputes have arisen in regard to said matters with the bankrupt, and also with the trustee on his sequestrated estates.

It is therefore necessary that some person should be appointed to perform the duties ad interim of the town clerk of the said burgh and of the said offices, appointments, and employments. The petitioners have appointed Robert Duncan Whyte, writer, Rothesay, to act ad interim in execution of the duties of town clerk, and of the said offices, appointments, and employments. It is necessary, however, that the authority of your Lordships should be obtained for such an appointment, and the petitioners respectfully suggest the name

Page: 452↓

of the said Robert Duncan Whyte as a fit and proper person to fill the said offices ad interim.”

The petitioners craved the Court to interpone authority to the appointment by the petitioners of the said Robert Duncan Whyte to act ad interim in execution of the duties of the office of town clerk of the said burgh and of said offices, appointments, and employments; or otherwise to appoint the said Robert Duncan Whyte, or such other person as their Lordships might deem fit, to be interim town clerk of the said burgh, and to act ad interim in execution of the said offices, appointments, and employments for such period and subject to such conditions as to their Lordships might seem proper.

Carse lodged answers in which he denied the charges made against him by the petitioners, and stated as follows:—“With regard to alleged difficulty in conducting the burgh affairs, there need be no difficulty whatever, as the respondent is able and willing to co-operate with the petitioners in carrying on the business of the burgh provided the petitioners will do their part. The various clerks are acquainted with the routine duties of their departments, and the respondent is willing to act notwithstanding the action taken by the petitioners.”

Argued for the petitioners—While it was true that the Court would not interfere where no incapacity was averred ( Magistrates of Annan v. Parish, December 6, 1835, 14 S. 111), it would interfere where there were such averments ( Adam v. Magistrates of Forfar, March 7, 1823, 2 8. 281; Magistrates of Newburgh, November 29, 1864, 3 Macph. 127). Here there were the strongest averments possible, and the defender was not in a position to appoint a depute to do the work.

Argued for the respondent—The office of town clerk was a munus publicum held on the strongest tenure known to the law, and there was no authority for the Court interfering so long at least as the work could be done, which was the case here— Simpson v. Tod, June 17, 1824, 3 S. 150; Magistrates of North Berwick v. Lyle, November 19, 1885, 23 S.L.R. 214.